Mardjokic v. Griffin

186 A.D.2d 431

Opinion

— Order, Supreme Court, New York County (Robert E. White, J.), entered July 25, 1991, which denied defendant Public Administrator’s motion to vacate a default judgment entered upon the decedent’s failure to timely appear and answer the complaint, unanimously affirmed, without costs.

The motion to vacate the default judgment was based solely on the ground that the decedent had never been served with process. As defendant concedes on appeal, that ground was withdrawn in the stipulation entered into after the decedent’s death. The ground defendant now raises instead — the decedent’s personal illness and a death in her family — may not be raised for the first time on appeal (Nelson v Times Sq. Stores Corp., 110 AD2d 691, appeal dismissed 67 NY2d 645), and, in any event, is unpersuasive in the face of evidence that the decedent was served with the process before she fell ill, and was, in fact, experienced in matters of real estate. Concur— Carro, J. P., Milonas, Rosenberger and Asch, JJ.